West Virginia Democrat. [volume] (Charles Town, W. Va.) 1885-1890, 1887-06-24
JUDGE HoKE ON THE SENATOR
SHIP.
Communicated.

Judge J. L. Hoke, of Preston. a
prominent Republican, is considered
by many the ablest lawyer on the ju
diciiry committee of the Legislature.
At the extra session he made an ar
gument against the power of that
session to elect q Z. S. Senator.
This argument has since been print
ed and the writer desires 4 place in
your paper for some notice of it.
Judge Hoke makes the strongest
presentation that has yet been offer
ed and the writer does not see how
he can be answered. He shows be-
yond possibility of successful refu-
tation that the anomalous body, pro-
vided for under the EXECUTIVE mot
the Legislative article in our State
Constitution, is merely Il sort of ex-
ecutive council, with the power of
veto over the recommendations Ivy
the Governor, but with no power to
originate Legislation or to transact
any BUSINESS NOT STATED IN
THE PROCLAMATION by which
it was called together" Attention
is called to the fact that Judge Cool
ey considered such Legislature a
mere Executive agency" and, not
in any sense, the Legislative depart
ment, nor the depository of those
sovereign attributes and powers
which are essential to constitute that
body which the National constitu-
ton refers to when it mentions "a
Legislature" Judge Hokc thinks
it is utterly unwarranted by the
Constitution, unwarranted by any
law of Congress and unwarranted by
any pecision of the Senate to assume
that such an agency" has power to
violate the State Constitution and to
usurp sovereign functions in the
election of U. S. Senator.
The power of a Legislature to elect
the Senator is derived from the Fed
eral Constitution and not from the
State Constitution. The Federal
Constitution lodges this power in
that body which is "a Legislature"
The question is, whether the called
session, which is prohibited from
entering upon any business except
that specified by the governor, can
be regarded as the law making de-
partment of the State Government?
The Constitution uses the term LEG
islature" to designate thing not !
cord. And that thing is the body
which is the law making power in
the State. At the time the Consti-
tuition was framed many States did
not have q political organization
called "a Legislature" In some
cases the law making department.
was known as "The General Assem-
bly," and in other cases it was called
"The General Court" When the
Constitution used the word ''Legis-
lature." it meant that full parliament
of the State, however called, with
which resided the plenary power to
make laws. Is body, which can
enter upon no business except that
mentioned by the Governor, such a
parliament? Judge Hoke thinks
that it is not "the Legislature"
which is contemplated by the Fed
eral Constitution.
He believes the Senate will not
hold that there is a conflict in q
case where the Constitutions, Nation
al and State, can be reconciled, and
where both in fact plainly point to
the same conclusion.
He suggests that the Senate may
perhaps attach Importance to the de-
cision of the Legislature itself as to
the extent of its powers under the
State Constitution. 1t is worthy of
remark that our State Constitution
does not make the Legislature the f.
nal Judge of its own powers. The
courts have jurisdiction topronounce
upon the constitutionality of laws
passed by the Legislature. The
same judicial functions in this in
stance will devolve upon the u. S.
Senate, and its duty will be, not to-
give validity to an unconstitutional
act, but to pronounce it void and
thereby to protect and defend both
the Constitution of the State and
that of the Union. The Senate it
self is the sole Judge of the validity
of the election of its own members.